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Trump sues his niece and the New York Times over tax story. His niece might be in trouble.

The former president's complaint isn’t lacking in colorful language. That doesn’t mean his underlying contention isn’t valid.

Former President Donald Trump has filed a $100 million lawsuit in New York against his niece Mary Trump and The New York Times. He accuses Mary Trump of breach of contract and the Times and its reporters of wrongfully interfering with that contract. Specifically, he’s alleging that Mary Trump shared his tax returns with three Times reporters, breaching a prior agreement she had made to keep them confidential. The Times then printed the information.

Assume, hypothetically, that the facts in his complaint are accurate. Granted, that’s a big assumption. But, if true, things don’t look great for Mary Trump.

Donald Trump’s complaint isn’t lacking in colorful language, charging that “the defendants engaged in an insidious plot” to obtain confidential records that “they exploited for their own benefit and utilized as a means of falsely legitimizing their publicized works.” However, that doesn’t mean his underlying contention isn’t valid. Assume, hypothetically, that the facts in his complaint are accurate. Granted, that’s a big assumption. But, if true, things don’t look great for Mary Trump.

Her uncle’s complaint alleges that, in prior litigation involving the estate of Fred Trump, Donald Trump’s father and her grandfather, to which she and Donald Trump were parties, Mary Trump or her lawyers obtained “more than 40,000 pages of highly sensitive … and confidential documents, including … financial documents, accountings, tax records, income tax returns” and more.

According to Donald Trump’s complaint, the settlement agreement they both signed in 2001 has a section dealing with confidentiality and the sealing of records. This section details nondisclosure obligations that allegedly bound Mary Trump when she accepted a “lucrative financial settlement.”

Donald Trump alleges the settlement agreement states that Mary Trump “shall not directly or indirectly publish or cause to be published, any diary, memoir … story … interview, article, essay, account, or description or depiction of any kind whatsoever … concerning their litigation or … their litigation involving the Estate” of Fred Trump.

If the tax returns are covered by that expansive language in the settlement agreement, and if Mary Trump disclosed them without permission, Mary Trump may have violated that agreement. If so, Donald Trump can win his case against his niece.

Mary Trump in a statement called her uncle’s move a desperate one.

Mary Trump speaks on MSNBC on Aug. 27, 2020.MSNBC

“I think he is a loser, and he is going to throw anything against the wall he can. It’s desperation. The walls are closing in and he is throwing anything against the wall that he thinks will stick,” she said. “As is always the case with Donald, he’ll try and change the subject.”

But we do know Mary Trump admitted in the book she wrote and elsewhere that she supplied the tax records to the Times. As cited in the complaint, she told The Daily Beast that she was “proud” to have supplied the information.

That’s not to say Mary Trump doesn’t have any defenses. For example, all the defendants could attack the underlying confidentiality agreement between the Trumps. Contracts to conceal information are generally lawful, but contracts to conceal information about illegal conduct generally are not. A confidentiality agreement that conceals criminal activities may be unenforceable and void because of the public policy in favor of disclosing of criminal activity.

The confidentiality provisions in the estate settlement appear pretty standard based on the allegations in Donald Trump’s complaint, but Mary Trump’s team may try to argue that this innocent-looking provision was designed to keep incriminating documents sealed forever. It’s a long shot, but defendants often get creative in fashioning their defense.

Of course, Mary Trump quashing the suit on these grounds would rest on whether a court determined that the underlying contract had a purpose of concealing criminal activity. That could actually boomerang on her uncle, because in the process of her making such a claim, more dirty laundry could be aired. To the extent he was motivated in his suit by outrage that the Times published sensitive financial information, going through a trial might only bring more attention and information to light.

Donald Trump almost certainly won’t win his case against the journalists or the Times, however. The Times is planning to challenge the lawsuit, according to a statement from a spokesperson Danielle Rhoades Ha.

"The Times' coverage of Donald Trump's taxes helped inform citizens through meticulous reporting on a subject of overriding public interest," she said. "This lawsuit is an attempt to silence independent news organizations and we plan to vigorously defend against it."

Trump may think he’s the next Hulk Hogan, about to sue his own personal Gawker into oblivion. But this is a totally different case, on different grounds, from that of the wrestling star, who sued the news gossip site for invasion of privacy and intentional infliction of emotional distress.

That’s because to win his claims against the journalists, Donald Trump may need to show more than just that the journalists knew of the confidentiality agreement and still published the information it contained. At least one New York federal court has implied that a defendant sued for tortious interference must have interfered either with the sole purpose of harming the plaintiff or by means that are dishonest, unfair or in any other way improper — like criminal or fraudulent conduct.

After all, if every reporter or media company was liable for the confidential information they obtained from a cultivated source, it would be the end of investigative reporting. Although Donald Trump might disagree, journalism seeks to expose or inform, not to harm or defraud.

Indeed, that’s how courts tend to see it, and they treat journalists differently when it comes to these types of claims. For example, in a 1996 case, Charles Huggins, the ex-husband of Melba Moore, a guest on “The Maury Povich Show,” sued host Maury Povich in a New York court for allegedly defamatory remarks Moore made on the show in violation of the ex-spouses’ confidentiality agreement.

The court in that case ultimately agreed with Povich that “private confidentiality provisions cannot be invoked to impose liability in such a case without violating the most fundamental rights of a free press to report on matters of legitimate public interest.”

Ultimately, Donald Trump could win a case against his niece. But not one against the Times or its reporters.